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If you own a business, you will likely need to create intellectual property (IP) at some point. You can create IP in simple ways, like coming up with a new business name, or through more complex development, such as inventing a new type of household product. If you have created intellectual property, it is important you protect it from being copied, duplicated, violated or used without permission. This article will discuss: 

  • some different types of intellectual property; and 
  • how you can protect your intellectual property.

Patents

A patent is a legally enforceable right for a certain invented product, device, substance, method or process. However, in order to qualify for patent protection, your invention must be new, useful and either inventive or innovative. 

If you meet this threshold, you are eligible to apply for a patent through IP Australia. Registering a patent will grant you exclusive commercial rights to exploit your invention. 

Patents protect the functionality of certain inventions, such as new medicines or inventive kitchen utensils. 

Protecting your invention with a patent application can be done in two different ways. First, you can apply for a standard patent, which provides you with 20 years of protection. Standard patents are granted for inventions that:

  • are new; 
  • involve an inventive step; 
  • are useful; and 
  • are not the subject of secret use. 

This application process is normally undertaken for ground-breaking inventions. 

Second, you can apply for an innovation patent, which provides you with 8 years of protection. Innovation patents only require an ‘innovative step’, not an inventive step, which means the invention demonstrates an improvement on something that is already in the public domain.
Please note, innovative patent applications will cease from 25 August 2021. 

It is important to note that if you discuss, demonstrate or sell your invention in public before filing for a patent, you may be forfeiting your right to register the patent. In order to protect your patent rights effectively, always ensure that your business partners or employees sign a confidentiality agreement before you file an application.

Trade Marks

A trade mark is a legal right to a certain brand element, such as a word, name, logo, phrase, colour, packaging design or shape. Trade marks are signs that indicate the source of a particular good or service. Branding is very important to a business, so it is important to register a trade mark with IP Australia and enforce your trade mark rights against other traders that infringe your rights. The three key steps to register a trade mark are set out below.

Identify the Trade Mark

When applying for trade mark registration, it is important that you identify the trade mark you wish to protect. This may mean applying for separate applications for your: 

  • name (as a ‘wordmark’); and 
  • logo (as a ‘figurative’ mark). 

If your business is referred to as different names (for example, ONYX HOTELS, ONYX MANAGED SERVICES and ONYX on its own), you can either apply for all three variations or stick to the business name you use the most. 

Identify the Relevant Classes

You will need to identify the relevant classes to include on your application. When applying for a trade mark, you must specify the goods and services that are, or will be, provided under a certain mark. IP Australia categorises these goods and services into ‘classes’. If your business provides multiple types of goods or services to consumers, such as jewellery and clothing, you may require more than one class. It is important to note that, although more classes may provide you with more spread and protection, it also increases the costs of an application.

Identify the Applicant

The applicant is the owner of the trade mark. Most often, this is the entity that will use the trade mark on a day to day basis. However, in certain business structures (such as ‘dual companies’), the applicant is not the entity that will use the trade mark. Instead, the applicant (often referred to as a ‘holding entity’) licenses the use of the trade mark to a trading entity. 

You do not necessarily need to register your trade mark in order to enforce your rights to a name against other infringing parties. 

For example, you can rely on reputational rights through allegations of passing off and misleading or deceptive conduct. However, the threshold to prove these allegations can be much higher than it is for trade mark infringement. Therefore, it is always recommended that you register your marks during the early stages of your business venture.

Trade mark registrations must be renewed every ten years in order to maintain protection.

Designs

A registered design protects the visual appearance of a certain product, but does not protect its functionality. Similar to patents, designs:

  • must be new and distinctive; and 
  • cannot have been revealed publicly. 

The design application process is two-stage. The first stage involves: 

  • filing the application; 
  • waiting for examination; and 
  • if successful, obtaining registration. 

This registration lasts for five years, with an option to renew for a further five year period. This provides you with ten years to monopolise and commercialise your product’s design.

The second stage involves certifying your registration. This stage is optional. It grants you the legal right to enforce your design against infringing parties.

Once a design right lapses, you will no longer have the exclusive right to use the design, and your protection will expire.

Plant Breeders Rights

If you breed new and distinctive varieties of plants, you can formally register your rights with IP Australia. As with patents and designs, your plant varieties must be new. Therefore, it is crucial to consider your position before disclosing information to the public. 

Copyright

Unlike the above types of intellectual property, you do not need to register copyright in order to protect your work. Copyright is a legal right to make copies of creative, artistic or literary works, and is automatically generated in Australia. 

Copyright generally lasts for the life of the creator plus 70 years. Where duration depends on year of publication, it lasts until 70 years after it was first published.

Key Takeaways

IP law is a complex area. There are many issues to consider before applying to protect your intellectual property. It is wise to seek legal advice from an expert IP lawyer if you:

  • believe you have developed or created IP and require immediate protection; or 
  • need help understanding your rights and responsibilities as a business owner. 

If you have any questions about IP protection, please contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is a patent?

A patent is a legally enforceable right for a certain invented product, device, substance, method or process. To qualify for patent protection, your invention must be new, useful and either inventive or innovative. 

What is a trade mark?

A trade mark is a legal right to a certain brand element, such as a word, name, logo, phrase, colour, packaging design or shape. Trade marks are signs that indicate the source of a particular good or service.

What is the difference between a word mark and a figurative mark?

A ‘wordmark’ is a plain text word you want to trade mark, such as a business name or a product name. A ‘figurative’ mark is visual element you want to trade mark, such as a logo or stylised version of your business name.

What is a design?

A registered design protects the visual appearance of a certain product, but does not protect its functionality. Designs must be new and distinctive and cannot have been revealed publicly. 

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